Men allege sewage damage in city lawsuit

Two residents have filed a lawsuit against the city of Shelby that could cost the city more than $225,000.

Joe Lovelace and Stony Yearwood recently filed the lawsuit after ongoing problems with untreated sewage overflowing onto their property. In 2010, more than 22,000 gallons of untreated sewage overflowed from a manhole, according to the lawsuit.

The lawsuit asks the city to stop the overflows, award attorney and witness fees, pay for damages and pay civil penalties of up to $37,500 a day for each day of each violation. For the six days alleged in the lawsuit, that totals at $225,000.

The sewage overflows, which have been ongoing for the past 10 years, according to the lawsuit, are a violation of the Clean Water Act.

“This is something that has been going on for quite some time, back at least to 2010 and perhaps even before that, where Mr. Lovelace has been subjected to these overflows on their property,” said Jamie Whitlock, Lovelace’s attorney.

The city received a letter of notification in December that Lovelace intended to file the lawsuit. The letter gave the city 60 days notice before the suit was filed.

“We were very explicit in this letter that we’d like to work it out without litigation and nobody ever called us,” Whitlock said.

He said Lovelace has tried to work with Shelby to get the issue fixed, but never got an adequate response.

“I know there’s been multiple conversations with folks with the city,” Whitlock said. “There just never seemed to be any will on the part of the city to do anything. It forced his hand into filing a lawsuit.”

What's in the lawsuit?

The lawsuit alleges that on at least six occasions since 2010, untreated sewage overflowed onto Lovelace’s property. On Feb. 5, 2010, a manhole overflowed, discharging about 19,000 gallons of untreated sewage on the property, according to the suit. Other instances include toilet and manhole overflows continuing into 2013.

The sewage, according to the suit, has caused property damage, a decreased property value, recurring odors on the property and in the home, damage to landscaping, inability to use the swimming pool or garden, and out-of-pocket expenses for clean-up of overflows.

At Shelby’s March 3 city council meeting, council went into a closed session to consult with the city attorney about the lawsuit.

Shelby City Manager Rick Howell declined to comment on the lawsuit specifically, but he said the city would be represented by an attorney signed by its insurance company.

He said the city has insurance to cover these types of lawsuits, especially since it operates so many departments, including utilities, law enforcement, and parks and recreation.

“Our insurance coverage has to be pretty robust to cover the variety of things that potentially could happen,” he said.

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What's next?

The next step for the lawsuit is to see how the city responds, said Whitlock.

“They will file some type of response to the complaint, be it an answer or a motion to dismiss,” he said. “If they file a motion to dismiss, the judge will have to rule on that before the case proceeds.”

He said, after that, the case would enter the “discovery phase, where we ask for documents and more information from the city to tie up the loose ends of things we may not know about the collection system and what the problems are.”

If the case goes to court, it would not be held in Cleveland County since it is a federal case. Instead, it would be held in Asheville, Whitlock said.

What does the lawsuit say?

“Shelby has, without a permit authorizing such discharges, due to its operation of the wastewater collection system, discharged raw sewage and wastewater onto Plaintiffs’ property, into Hickory Creek, and into Plaintiffs’ residence, through chronic and ongoing prohibited sanitary sewer overflows (SSO’s or overflows) of Shelby’s collection system.”

Who are the plaintiffs?

Joseph D. Lovelace and Stony Yearwood, who live on Windsor Drive in Shelby.

What have the overflows caused?

According to the lawsuit, the overflows have caused the recurring presence of raw sewage and wastewater on the property and inside the residence; recurring odors on the property and in the residence; damage to landscaping; damage to personal property inside the residence; inability to use the swimming pool, entertain guests or garden; inability to raise livestock on the property; out-of-pocket expenses for clean-up of overflows; and fear of leaving the property for extended periods of time due to recurring and ongoing overflows.

What does the lawsuit ask from the city?

To stop discharge of pollutants, to award attorney and witness fees, to pay for damages, and to pay civil penalties of up to $37,500 per day for each day of each violation of the Clean Water Act. For the six days alleged in the lawsuit, that totals $225,000.